MHA Affidavit on Rohingya Refugees In India

Ministry of Home Affairs has filed a detailed affidavit before the Supreme Court listing the reasons why they are not welcome in India. Apart from talking about the resource and demography, the affidavit says that some of the immigrants are militants having links with ISI and ISIS. The affidavit was in response to the plea filed by two UNHRC registered Rohingya refugees Mohammad Salimullah and Mohammad Shaqir against a possible deportation. The case is now slated for a hearing in the first week of October. Since the document offers an official stand on illegal refugees, some of whom are living in J&K, and details India’s position on various International Conventions including Protection of All Persons against Enforced Disappearances and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the entire affidavit is being reproduced here.

IN THE SUPREME COURT OF INDIA

[ CIVIL ORIGINAL JURISDICTION ]

WRIT PETITION [CIVIL] NO.793 OF 2017

IN THE MATTER OF

Mohammad Samilullah & Anr. … Petitioners

Versus

Union of India & ors. … Respondents

AFFIDAVIT ON BEHALF OF RESPONDENT – UNION OF INDIA

I, Mukesh Mittal s/o Shri V.P. Mittal aged about 57 years having my office at National Stadium, Ministry of Home Affairs, New Delhi, do hereby solemnly affirm and state as under:

I am functioning as Joint Secretary [Foreigners] in the Ministry of Home Affairs, Union of India. In my official capacity and being duly authorised, I am fully conversant with the facts and circumstances of the subject matter of the writ petition. I state and submit that I have gone through, perused and understood the relevant records and material with respect to the subject matter of the petition based upon which I am filing this Affidavit to place the following legal as well as factual position for kind consideration of this Hon’ble Court.

I respectfully submit that I am filing this Affidavit to respectfully place on record the legal position emerging from the Constitution of India leading to the conclusion that the subject matter of the present petition and the prayers prayed for therein would fall within the exclusive domain of executive decision making / policy making of the Central Government and will not be justiciable.

I am filing this Affidavit in reply only for the limited purpose of satisfying the conscience of this Hon’ble Court that this is not a case where the constitutional court of the country which is essentially the custodian of Fundamental Rights of Indian citizens may consider intervening. I am, therefore, placing only limited facts before this Hon’ble Court by way of the present Affidavit. I, however, reserve my rights to file a further and a detailed Affidavit on behalf of the Central Government as and when so required / advised. At this stage, therefore, I am not dealing with the petition parawise. My not dealing with the petition para-wise may not be treated as my having admitted the correctness or otherwise of any of the contents thereof.

I respectfully submit that I have placed only those facts in this Affidavit which can be placed in public domain. I respectfully submit that the Central Government refrains from placing other facts in this Affidavit which will have a direct bearing on internal security and national security of India and are confidential in nature. I crave to place such facts in detail including inputs from security agencies which Central Government has been receiving since many years as well as other information concerning national security in a sealed cover only for the kind perusal of this Hon’ble Court. Such facts will satisfy this Hon’ble Court to accept the respectful submission of the Central Government that it is desirable, expedient, constitutionally imperative and in the interest of the nation to leave such a decision to the executive decision making / policy making of the Central Government which would doubtlessly, in facts of each case of this nature, need several factors, facts, possibilities, parameters and potential outcome into consideration which exercise can be gone into only by the executive.

I respectfully place the following legal position for kind consideration of this Hon’ble Court.

I respectfully submit that so far as the question of deportation of any illegal immigrant is concerned, the question will be as to whether the illegal immigrants in question should be permitted to reside and settle down in the territory of India and whether a writ can be issued under Article 32 by this Hon’ble Court having the effect of an illegal immigrant residing in India.

6. I respectfully submit that as a custodian of the fundamental rights of the citizens of India and while exercising its writ jurisdiction under Article 32 of the Constitution [which can be invoked only for enforcement of Fundamental Rights], this Hon’ble Court would kindly consider Article 19 (d) and (e) of the Constitution. Article 19(1) reads as under:

“19. Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) omitted

(g) to practise any profession, or to carry on any occupation, trade or business”

[Emphasis Supplied]

As evident from the Constitutional guarantee flowing from Article 19 of the Constitution, the right to reside and settle in any part of the territory of India as well as right to move freely throughout the territory of India is available only to the citizens of India as evident from Article 19(1) of the Constitution. No illegal immigrant can pray for a writ of this Hon’ble Court which directly or indirectly confer the fundamental rights in general and the rights under Article 19(1) (d) and (e) in particular

As against the scheme of Article 19, the fundamental rights of Indian citizens under Article 21 of the Constitution of India also needs to be addressed first by the State. This Hon’ble Court, as a Custodian of the fundamental rights of the citizens of this country, has been pleased to interpret Article 21 of the Constitution very widely so as to include several facets of “life”. This Hon’ble Court has read the term “life” to mean to live with human dignity, having a right to food, having a right to shelter, having a right to good environment, having a right to earn livelihood by lawful means etc. The State is bound to protect the said fundamental rights of its citizens. Citizens of India cannot be deprived of any of their fundamental rights including the right under Article 21 of the Constitution and this will be a major consideration by the State while taking executive / administrative decision of policy.

I respectfully state and submit that the Constitution makes it imperative for the State to follow the Directive Principles of State Policy while discharging its executive functions of governance. Some of the relevant Articles contained in Part IV of the Constitution, which may assist this Hon’ble Court, are reproduced hereunder for ready reference:

“38. State to secure a social order for the promotion of welfare of the people

(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life

(2) The State shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.”

[Emphasis Supplied]

“39. Certain principles of policy to be followed by the State:

The State shall, in particular, direct its policy towards securing

(a) that the citizens, men and women equally, have the right to an adequate means to livelihood;

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;

(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.”

[Emphasis Supplied]

“41. Right to work, to education and to public assistance in certain cases :

The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.”

I respectfully submit that the State, in exercise of its sovereign executive functions, will have to take administrative policy decisions keeping the aforesaid Directive Principles in mind so as to ensure that first and the foremost, obligations of the State towards its citizens enshrined under Part III of the Constitution are discharged within the available national resources and while ensuring their safety and security.

I respectfully submit that the scheme of the Constitution makes it very clear that India, as a sovereign nation, has the first and the foremost constitutional duty and obligation towards its citizens to ensure that demographic and social structure of the country is not changed to their detriment, the resulting socio-economic problems do not occur to the prejudice of its citizens and most importantly resources of the nation are utilized to fulfil the fundamental rights of its own citizens and are not diverted to the detriment of the citizens of India due to the influx of illegal immigrants into the territory of India.

I respectfully state and submit that whenever the country faces a problem of influx of illegal immigrants, the Central Government, in exercise of its executive functions, takes policy decision depending upon several facts, parameters, diplomatic and other considerations, potential dangers to the nation etc.

In respectful submission of the Central Government, such decisions regarding deportation of illegal migrants are essentially executive decisions taken by the Government as a part of governance of a sovereign nation and as a process of policy making and are taken based on several executive and administrative considerations which would not be justiciable. The fact situation, the potential threat to the internal and national security of the country, diversion of the national resources to the detriment of Indian citizens etc. differ from case to case and the Central Government takes its executive / administrative decision in discharge of its executive sovereign function based upon empirical data and objective facts by way of policy. This Hon’ble Court may not, therefore, accede to any prayer which may amount to re-writing or substituting an essential executive policy of the Central Government.

The question of deportation depends upon the fact situation in each particular case which is dealt with by the Central Government in larger national interest. When such decisions are taken to protect and preserve the fundamental rights of the citizens of the country and on consideration of various non-justiciable factors, this Hon’ble Court may not invoke its jurisdiction under Article 32 of the Constitution of India.

I respectfully submit that having respectfully brought the constitutional scheme referred above, I beg to point out the following statutory scheme and legal position.

I respectfully submit that the provisions of Convention Relating to the Status of Refugees, 1951 and Protocol Relating to the Status of Refugees, 1967 cannot be relied upon by the petitioner since India is not a signatory of either of them.

It is respectfully submitted that the obligation concerning the prohibition of return / non-refoulement is a codified provision under the provisions of 1951 Convention referred to above.

It is submitted that this obligation is binding only in respect of the States which are parties to the Convention. Since India is not a party to the said Convention, or the said Protocol, the obligations contained therein are not applicable to India.

India being not a signatory to either the aforesaid Convention of 1951 or Protocol of 1967, is not bound by any of its provisions. It is respectfully submitted that while India is a party to the International Covenant on Civil and Political Rights, the scope of the said Covenant does not extend to the principles of non-refoulement.

So far as the International Convention on Protection of All Persons against Enforced Disappearances and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is concerned, it is respectfully submitted that apart from the fact that India is yet to ratify these Conventions [and, therefore, do not bind India], no situation has emerged, even hypothetically, to place reliance upon the same Conventions.

The above referred position makes it clear that in absence of any international treaty to which India is a signatory preventing India from exercising its power of deportation, the Petitioner cannot base its claim on any of international treaties / convenants.

Without prejudice to the aforesaid fact, it is pointed out that this Hon’ble Court would not undertake the exercise of examining treaties / Conventions since no writ can be issued under Article 32 of the Constitution based upon the same when it is evident that such an indulgence by the highest court of the country would encourage illegal influx of illegal migrants into our country and thereby deprive the citizens of India of their fundamental and basic human rights.

So far as the Indian law governing the subjects like deportation is concerned, I beg to point out the following facts. I respectfully submit the subjects like foreign affairs, all matters which bring the Union into relations with any foreign country, diplomatic relations, citizenship, extradition, admission into and emigration and expulsion from India etc. form part of the Union List [List I] contained in the Seventh Schedule to the Constitution read with Article 246 of the Constitution. It is thus, within the domain of Parliament to make laws and for the Central Government to take executive / administrative decisions with regard to the said subjects.

I state and submit that earlier the measures governing the foreigners were found in –

(i) The Foreigners Act, 1864; and

(ii) The Registration of Foreigners Act, 1939

which provided for regulating registration of foreigners, formalities connected therewith etc. since the said provisions were found to be inadequate, the Parliament enacted the Foreigners Act, 1946 with an object which is reflected in the following Statement of Objects and Reasons:

“Statement of Objects and Reasons

At present the only permanent measures governing foreigners specifically are the Registration of Foreigners Act, 1939 and the Foreigners Act, 1864. The Act of 1939 provides for the making of rules to regulate registration of foreigners and formalities connected therewith, their movement in, or departure from, India. The Act of 1864 provides for the expulsion of foreigners and their apprehension and detention pending removal and for a ban on their entry into India after removal; the rest of the Act which provides for report on arrival, travel under a licence and certain incidental measures can be enforced only on the declaration of an emergency. The powers under this Act have been found to be ineffective and inadequate both during normal times and during an emergency.

The needs of the war emergency were met by the enactment of a Foreigners Ordinance in 1939 and the promulgation under it of the Foreigners Order and the Enemy Foreigners Order. Even at that time the need for more satisfactory permanent legislation was recognised but it was decided to postpone consideration of such a measure until after the war. The Ordinance was, therefore, replaced by the Foreigners Act, 1940, the life of which was to expire on the 30th September, 1946, but has recently been extended by the Foreigners Act (Amendment) Ordinance, 1946, up to the 25th March, 1947.

Meanwhile the question of permanent legislation, more or less on the lines of the Act of 1940 has been examined, in consultation with the Provincial Governments. All Provincial Governments agree that such permanent legislation in repeal of the Act of 1864, is necessary. The Bill in the main reproduces the provisions of the Foreigners Act of 1940.”

Section 2(a) defines the term “Foreigners” as under:

“2(a) “foreigner” means a person who is not a citizen of India”

Section 3 of the Act empowers the Central Government to make an Order “either generally or with respect of foreigners or with respect of any particular foreigner or any prescribed class or description of foreigner”. Section 3 of the Act reads as under:

“3. Power to make orders. —

(1) The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India or, their departure there from or their presence or continued presence therein.

(2) In particular and without prejudice to the generality of the foregoing powers, orders made under this section may provide that the foreigner-

(a) shall not enter India or shall enter India only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed;

(b) shall not depart from India or shall depart only at such times and by such route and from such port or place and subject to the observance of such conditions on departure as may be prescribed;

(c) shall not remain in India, or in any prescribed area therein;

(cc) shall, if he has been required by order under this section not to remain in India, meet from any resources at his disposal the cost of his removal from India and of his maintenance therein pending such removal;

(d) shall remove himself to, and remain in, such area in India as may be prescribed;

(e) shall comply with such conditions as may be prescribed or specified

(i) requiring him to reside in a particular place;

(ii) imposing any restrictions on his movements;

(iii) requiring him to furnish such proof of his identify and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified;

(iv) requiring him to allow his photograph and finger impressions to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified;

(v) requiring him to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified;

(vi) prohibiting him from association with persons of a prescribed or specified description;

(vii) prohibiting him from engaging in activities of a prescribed or specified description;

(viii) prohibiting him from using or possessing prescribed or specified articles;

(ix) otherwise regulating his conduct in any such particular as may be prescribed or specified;

(f) shall enter into a bond with or without sureties for the due observance of, or as an alternative to the enforcement of, any or prescribed or specified restrictions or conditions;

(g) shall be arrested and detained or confined;

and may make provision for any matter which is to be or may be prescribed and for such incidental and supplementary matters as may, in the opinion of the Central Government, be expedient or necessary for giving effect to this Act.

(3) Any authority prescribed in this behalf may with respect to any particular foreigner make orders under Clause (e) for Clause (f) of sub-section (2).”

[Emphasis Supplied]

It is respectfully submitted that as evident from the express and conscious use of expressions in Section 3, the legislative intent is clear, which is to confer an administrative and executive discretion upon the Central Government to take steps with regard to either “all foreigners” or “with respect to any particular foreigner” or “any specified class or description of foreigners”. This discretion is necessary since the parameters, circumstances and other considerations will vary in each case as explained above.

The Central Government has, in exercise of its power under the aforesaid Act, made the Foreigners Order, 1948.

I state and submit that the provisions of the Act of 1946 in general and that of Section 3(2)(c) in particular not only statutorily empowers but considering the intent, purpose and spirit of the entire Act, casts an obligation upon the Central Government to deport a person who is an illegal immigrant.

I state and submit that the scope and purview of The Foreigners Act, 1946 fell for consideration of the Hon’ble Constitution Bench of this Hon’ble Court in the case of Hans Muller of Nurenburg vs Superintendent, Presidency Jail, Calcutta & ors. reported in AIR 1955 SC 367. While examining the scheme, scope, ambit and powers conferred upon the Central Government under the said Act, the Constitutional Bench of this Hon’ble Court, inter alia, was pleased to hold as under:

“19. We do not agree and will first examine the position where an order of expulsion is made before any steps to enforce it are taken. The right to expel is conferred by Section 3(2)(c) of the Foreigners Act, 1946 on the Central Government and the right to enforce an order of expulsion and also to prevent any breach of it, and the right to use such force as may be reasonably necessary “for the effective exercise of such power” is conferred by Section 11(1), also on the Central Government. There is, therefore, implicit in the right of expulsion a number of ancillary rights, among them, the right to prevent any breach of the order and the right to use force and to take effective measures to carry out those purposes. Now the most effective method of preventing a breach of the order and ensuring that it is duly obeyed is by arresting and detaining the person ordered to be expelled until proper arrangements for the expulsion can be made. Therefore, the right to make arrangements for an expulsion includes the right to make arrangements for preventing any evasion or breach of the order, and the Preventive Detention Act confers the power to use the means of preventive detention as one of the methods of achieving this end. How far it is necessary to take this step in a given case is a matter that must be left to the discretion of the Government concerned, but, in any event, when criminal charges for offences said to have been committed in this country and abroad are levelled against a person, an apprehension that he is likely to disappear and evade an order of expulsion cannot be called either unfounded or unreasonable. Detention in such circumstances is rightly termed preventive and falls within the ambit of the Preventive Detention Act and is reasonably related to the purpose of the Act.

….

The Foreigners Act confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains.”

[Emphasis Supplied]

Following the said judgment, this Hon’ble Court, in the case of Mr. Louis De Raedt & Ors vs Union Of India And Ors. reported in (1991) 3 SCC 554 was pleased to hold, inter alia, as under:

“13. The next point taken on behalf of the petitioners, that the foreigners also enjoy some fundamental rights under the Constitution of this country, is also of not much help to them. The fundamental right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country, as mentioned in Article 19(1)(e), which is applicable only to the citizens of this country. It was held by the Constitution Bench in Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta [(1955) 1 SCR 1284 : AIR 1955 SC 367 : 1955 Cri LJ 876] that the power of the government in India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering this discretion. It was pointed out that the legal position on this aspect is not uniform in all the countries but so far the law which operates in India is concerned, the executive government has unrestricted right to expel a foreigner. So far the right to be heard is concerned, there cannot be any hard and fast rule about the manner in which a person concerned has to be given an opportunity to place his case and it is not claimed that if the authority concerned had served a notice before passing the impugned order, the petitioners could have produced some relevant material in support of their claim of acquisition of citizenship, which they failed to do in the absence of a notice.”

[Emphasis Supplied]

I state and submit that having respectfully pointed out the Scheme of the statutory power and obligation of the Central Government to deport the illegal immigrants, the Central Government respectfully wishes to place the following facts for kind consideration of this Hon’ble Court with regard to the issues raised in the present case.

I state that so far as India is concerned, national security considerations rank the highest on country’s list of priorities given its geopolitical influence in the region and its vulnerability to cross border infiltrations due to the porous nature of its borders which our country shares with many countries.

India has open / porous borders with Nepal, Bhutan, Bangladesh, Pakistan, Myanmar etc. and has an easily navigable sea route with Pakistan as well as Sri Lanka making it vulnerable to a continuous threat of an influx of illegal immigration and resultant problems arising therefrom.

I respectfully submit that India is already saddled with a very serious problem of illegal migrants and is attempting to address this situation in the larger interest of the nation and keeping the national resources of the country, requirements of India’s own population, the national security concerns of India and several other facts in consideration which are based upon objective facts derived from empirical data which are in the knowledge and contemporaneous record of the Central Government.

It is submitted that due to an already existing large influx of illegal immigrants from the neighbouring countries, the demographic profile of some of the bordering states has already undergone a serious change which is already causing the far-reaching complications in various contexts and is taking its toll and has a direct detrimental effect on the fundamental and basic human rights of country’s own citizens.

I respectfully submit that the so far as the Rohingyas are concerned, they claim to have entered into [admittedly without any valid travel document and illegally]from Myanmar using porous border between India and Myanmar. The total number of such illegal immigrants into our country would be more than 40,000 approximately as on date.

I state and submit that while taking a decision, the Central Government obviously takes into consideration various factors inter alia, broad facts referred above. It is submitted that continuance of Rohingyas’ illegal immigration into India and their continued stay in India, apart from being absolutely illegal, is found to be having serious national security ramifications and has serious security threats.

It is submitted that illegal influx of Rohingyas, in significant numbers, have started into the territory of India since 2012-13 and the Central Government has contemporaneous from security agencies inputs and other authentic material indicating linkages of some of the unauthorised Rohingya immigrants with Pakistan based terror organisations and similar organisations operating in other countries. Over and above the said serious security concern already in existence, more disturbing part is that there is an organised influx of illegal immigrants from Myanmar through agents and touts facilitating illegal immigrants Rohingyas into India via Benapole-Haridaspur (West Bengal), Hilli (West Bengal) and Sonamora (Tripura), Kolkata and Guwahati. This situation is seriously harming the national security of the country.

It is observed by the Central Government that some Rohingyas are indulging in illegal / anti national activities i.e. mobilization of funds through hundi/hawala channels, procuring fake / fabricated Indian identity documents for other Rohingyas and also indulging in human trafficking. They are also using their illegal network for illegal entry of others in the India. Many of them have managed to acquire fake / fraudulently obtained Indian identity documents i.e. PAN Card and voter cards.

It is also found by the Central Government that many of the Rohingyas figure in the suspected sinister designs of ISI/ISIS and other extremists groups who want to achieve their ulterior motives in India including that of flaring up communal and sectarian violence in sensitive areas of the country.

I respectfully submit that a fragile north-eastern corridor may become further destabilised in case of stridency of Rohingya militancy, which the Central Government has found to be growing, if permitted to continue. There is also a serious potential and possibility of eruption of violence against the Buddhists who are Indian citizens who stay on Indian soil, by the radicalized Rohingyas.

I state and submit that some of the Rohingyas with militant background are also found to be very active in Jammu, Delhi, Hyderabad and Mewat, and have been identified as having a very serious and potential threat to the internal / national security of India.

It is respectfully submitted that India is a country with large population, surplus labour force, and has its complex social/cultural/economical infrastructure. Providing facilities / privileges to illegal immigrants out of the existing national resources, apart from above referred direct threat to national security, would also have a direct adverse impact upon Indian citizens as it would deprive the Indian citizens of their legitimate share in the employment sector, subsidized housing, medical and educational facilities and would thereby culminate in hostility towards immigrants resulting into an inevitable social tension and law and order problems. The fundamental rights of Indian citizens would, therefore, be seriously violated.

I crave leave to place for perusal of this Hon’ble Court such inputs from the security agencies and details gathered during other sensitive investigations right from 2012-13 in a sealed cover to substantiate the aforesaid facts placed in this Affidavit.

I state and submit that under the scheme of the Foreigners Act, 1946 and in exercise of the powers contained therein, the Central Government has issued various orders providing for the procedure for detection and deportation of illegal immigrants. Such orders were passed from time to time. However, the Central Government, through Ministry of Home Affairs [Foreigners Division], had issued consolidated instructions regarding the procedure to be followed for deportation, repatriation etc. of foreigner national / illegal immigrants vide its order / directive dated 19.4.2014 which are sent to all State Governments and Union Territories to whom the powers are delegated. Whenever, deportation of an illegal immigrants / prescribed class or description of immigrants is decided, such deportation takes place as per the said procedure which is just and fair procedure established by law.

In light of what is stated hereinabove, as the subject matter of the petition is not justiciable, as the fundamental rights of Indian citizens would be adversely effected, as there is serious national security threat/ concern and when a just and fair procedure prescribed by law exist for deportation, this Hon’ble Court may decline its interference leaving to the Central Government to exercise its essential executive function by way of a policy decision in larger interest of the country.

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